The Department of Justice last week announced the creation of a $1.776 billion “Anti-Weaponization Fund” to repay victims of left-wing lawfare. While it remains to be seen whether this funding could go to MAGA lawyers who are victims of frivolous left-wing ethics complaints brought before Democrat-dominated bar disciplinary authorities, other remedies are already underway.
With a new landmark lawsuit, the Trump Justice Department is finally fighting this “barfare” —leftist efforts to render the right defenseless by crushing or chilling conservative attorneys via stress-inducing probes, costly trials, and crippling penalties that include disbarment. On May 13, the DOJ filed a complaint against the bar disciplinary authorities of Washington, D.C., in defense of former Trump I DOJ official Jeffrey Clark, the Constitution, and the rule of law itself.
Those authorities investigated, tried, and convicted the accomplished litigator for a novel “thoughtcrime”: preparing a document proposing a legal course of action based on a reading of evidence that his DOJ superiors disagreed with.
As detailed in previous reporting at RealClearInvestigations, Clark, then-serving as Acting Assistant Attorney General for the DOJ’s Civil Division, believed that potentially election-altering irregularities occurred during the 2020 presidential election, including in Georgia. So after the contest he drafted a letter on the department’s behalf to Peach State leaders to address such matters. He designated the letter as “Pre-Decisional & Deliberative/Attorney-Client or Legal Work Product” and “FOR INTERNAL … USE ONLY,” and dubbed it a “Proof of Concept” document. The letter indicated that the DOJ had identified potential election-swinging issues and called on the state to convene a special legislative session to review and remedy such matters.
Clark presented the letter to his bosses, including Acting Attorney General Jeffrey Rosen, for review. They disagreed with its claims regarding 2020 election integrity issues and Clark’s plan to address them. Ultimately, the document would go unsent, only to leak after President Trump had left office during Democrats’ Jan. 6-related political and legal jihad.
After the inauguration of Joe Biden, no fewer than four authorities scrutinized the white-shoe lawyer for daring to question the legitimacy of the 2020 election and merely fighting for the DOJ to do something about it. The first three — the Jan. 6 Committee, Special Counsel Jack Smith, and the Fulton County district attorney — would all strike out in their attempts to destroy him.
Barfare would serve as what Clark recently termed Democrats’ “weaponization tactic of last resort.” In July 2022, D.C. bar disciplinary authorities charged Clark with ethical violations, including “conduct involving dishonesty,” over his drafting and defending of the document. The then-Democrat-led Senate Judiciary Committee allegedly spurred the case by lodging an ethics complaint with the D.C. regime.
After three years of arduous and costly litigation, the disciplinary tribunal found that Clark had attempted “to make intentionally false statements about the results of the Justice Department’s investigation” into the 2020 election. What was the tribunal’s reasoning? That Clark’s views did not comport with those of his superiors, his superiors by default represented those of the department, and therefore, by ascribing his conflicting views to the department in his draft, unsent, “pre-decisional” letter, he was somehow being dishonest.
Despite admitting that there were “no factually comparable prior disciplinary cases,” the tribunal recommended that Clark be disbarred.
Clark is appealing the absurd and outrageous case — one that would render it potentially career-ending to provide legal advice that might conflict with that of one’s superiors. The case would also seem to make it fair game for disciplinary authorities to review and potentially render punishment over internal draft documents containing hypothetical legal proposals.
DOJ’s suit aims to halt his persecution via injunction. But its indictment of Clark’s persecutors runs deeper, and the ruling it seeks is far broader. The department asserts that the D.C. tribunal has engaged in a “pattern and practice of bad-faith and harassing prosecutions … based on viewpoint and political affiliation,” reflecting the “weaponization” of the bar disciplinary process.
The suit details that Assistant Disciplinary Counsel Jack Metzler, a defendant and key member of the Clark prosecution, “posted dozens” of anti-conservative messages during and after the case on social media, indicating the office’s bias and motivation for targeting conservative lawyers.
Following the filing of the Justice Department’s suit in Clark’s case, Metzler removed himself from a related case brought by his office, which is led by another named defendant, Disciplinary Counsel Hamilton P. Fox III. The office is likewise prosecuting a current DOJ official, U.S. Pardon Attorney Ed Martin, for his allegedly unethical correspondence with Georgetown University Law Center.
As detailed previously, while serving as interim U.S. attorney for D.C., Martin confronted the school over its alleged promotion of DEI, indicating its responses could affect its nonprofit status and federal funding. Fox’s office is pursuing Martin based on its opinion that he threatened the school’s constitutional rights. The kicker is that Fox’s office brought the Martin case after Martin had questioned Fox about his office’s alleged weaponization against Clark. DOJ calls the case “retaliatory.” The department recently intervened on Martin’s behalf, filing a statement of interest in his case and calling for its removal to federal court.
In addition, the Justice Department notes the D.C. bar disciplinary tribunal’s lenient treatment of leftists in contrast to its treatment of conservatives: When FBI Attorney Kevin Clinesmith was caught doctoring an email to convince the FISA Court to let the feds spy on Trump adviser Carter Page, the D.C. bar gave him a “slap on the wrist” with a retroactive one-year license suspension.
The suit closes with a trio of legal arguments that transcend Clark’s case or claims of a bar disciplinary authority run amok: first, that the Constitution’s Supremacy Clause prohibits state and local bar disciplinary authorities from regulating the work of federal officials like Clark via bar disciplinary proceedings; second, that such authorities engage in unlawful discrimination by subjecting federal lawyers to disciplinary cases never before brought against non-federal lawyers; third, that by targeting federal attorneys over their work, such authorities are unlawfully interfering with presidential power.
Barfare like that of the D.C. bar disciplinary authority would paralyze the federal government and our federalist system if successful. That is precisely what the left threatens with Democrat-aligned groups lodging additional ethics complaints against a range of targets from Acting Attorney General Todd Blanche down to career department attorneys.
The DOJ’s lawsuit does not directly address lawfare activists’ targeting of non-government lawyers with disbarment and destruction for taking up verboten causes, such as constitutional scholar John Eastman’s work contesting the 2020 presidential election. Still, it may prove far more effective than the Justice Department’s proposed rule giving the agency the right to review (but not to quash) efforts to cripple conservative federal lawyers via the likes of the D.C. bar disciplinary authorities.
The lawsuit represents a vital step toward ending an un-American war on disfavored attorneys and defenders of disfavored causes — a war that would do irrevocable damage to our justice system and republic.
Ben Weingarten is editor at large for RealClearInvestigations. He is a senior contributor to The Federalist, columnist at Newsweek, and a contributor to the New York Post and Epoch Times, among other publications. Subscribe to his newsletter at weingarten.substack.com, and follow him on Twitter: @bhweingarten.
